August 10, 2013

Legal Historians, Law Schools, and "Utility"

Sally Gordon's recent post over at the Legal History
Blog on legal historians who are on the market this year raises some interesting questions. I've written briefly elsewhere on the "relevance" of legal historians within the legal academy. But Dan Ernst's reply to Gordon's post that, “Now,
more than ever, legal history candidates must be able to explain why they can
only do what they want to do as a member of a law faculty,” has me thinking about the
"utility" of legal historians to law schools.

Dan’s focus is
on candidates’ scholarship and pedagogy. But, for the moment at least, I'd like to shift the discussion to
staffing and course load, which for many law schools ranks up there with scholarship and pedagogy.

Legal historians typically have a broad knowledge of law. While
we all have our particular areas of emphasis, our training in and study of legal history
constantly exposes us to a broad sweep of the legal experience. I think if you were to look at the reading
lists for legal historians' oral/preliminary exams, you'd see a wide range of
substantive legal areas, not to mention legal education and practice. And that is in
addition to our training as "generalists" in law school.

I would think that this
training would be of considerable interest to law schools, at least from the
perspective of staffing courses. In my
own case, I have been teaching Property as my main course, despite the fact that most of my scholarship focuses on constitutional history. I am teaching Con Law this year, though, in addition to Property. I would also be willing to teach any of the first-year courses, in
addition to Ad Law, Legislation, Con Crim Pro, or Trusts and Estates, if the need arose.
I have yet to teach American legal history, as it is currently well-manned
by my
colleague Art McEvoy (who also teaches Torts). My legal history friends who teach in law
schools also teach big non-legal history courses (e.g., Torts, Con Law,
Property, Trusts and Estates, Ad Law, Tax).
One particularly insane legal historian I know is teaching Property and
T/E in the same semester this year!

It would appear, then, that legal historians are providing important value to their institutions.

But I'll put the question to you all. Is this teaching flexibility of value to law schools? More generally, what would you say is the primary value of any professor (or at least an entry-level professor) to
a law school? What value do we, or should we, place on
the size of the classes that faculty teach? For example, if I teach two big sections of Property, does it matter that my scholarship focuses on legal history? If it doesn't, and if legal historians by their
training are potentially able to fill a range of a school's teaching needs, shouldn't that
make the legal historian more
valuable to law schools than the average entry-level candidate, at least from a teaching perspective?

Comments

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I'm suspicious of the value of generalists, and I'll attempt to explain why. Imagine a hypothetical law school with four core courses (Torts, Contracts, T&E, and Con Law), and then upper level electives are determined by whatever the professors are specialists in. Our legal historian is a jack of all trades and a master of one (legal history); the other professors are a specialist in one area, have a sub-specialty in a related area, and then are near worthless in fields outside their area of study. Here's what our five professors look like:

The legal historian is clearly the most valuable, right? Nearly 50% more valuable than any other professor!

Not so fast. If each professor teaches 2 classes, B-E will each teach their specialty and their sub-specialty, offering a total value of 18, while the historian teaches history and any of the other four classes for a total value of 17. Thus, he is actually the least valuable member of the faculty. It doesn't matter that he could competently teach any of the four core classes because for each of those classes there is someone even better available.

I think we see plenty of examples of this same idea in every day life. If you're deciding where to go out for dinner, do you want a restaurant where the chef is competent in every style of European cuisine, or one who is a specialist in one cuisine but doesn't know anything about the rest? Since you're only going to be eating one meal tonight, you figure out whether you want French, Italian, German or Spanish, and you go to the restaurant that specializes in that cuisine instead of Pan-Euro Ristorante.

If you're filing for divorce, do you want a generalist attorney, or a divorce specialist? Of course you want the divorce specialist, then when you have a DUI you go to the DUI specialist. Do you want to read a book by an author who is a decent novelist and a decent poet? Nope. If you want to read a novel, you pick a great novelist and if you want to read poetry you pick a great poet. If you're hiring for a health care administration position, do you want the JD or the person with a Masters of Health Care Administration?

Of course there are situations where you do want a generalist. Rural town with only 2 attorneys? Best that they're both generalists. You'd rather the closest grocery store to you be a normal supermarket rather than a specialized ethnic market. If you're buying a car (and only can afford to have one car), you want something that's all around useful, and not a two seater sports car. If you're taking a large group with diverse tastes out for dinner, Pan-Euro Ristorante is the better choice. And, if you're going to have a law school with a lean staff and high teaching loads, that generalist becomes a lot more valuable (with 3 courses he's offering 24 value compared to 20 for the other profs).

You've put yourself and those similarly situated in a peculiar position. Your claim, I take it, is that entry-level legal historians can teach big sections of required courses, *and* that if so, your scholarship's focus on legal history might be irrelevant to the classroom -- in the sense that it isn't disqualifying. So . . . let's assume the premise that by virtue of their training, legal historians are somehow more capable than, say, a litigation associate who can teach Civ Pro and Torts, as opposed to Property. If your scholarship, as opposed to your training, is estranged from the classroom and irrelevant in the way you claim, doesn't that undermine the claim that it should be subsidized -- rather than, say, hiring the well-trained legal historian to teach four or five courses and put her research in mothballs? The easiest claims about the need to hire for scholarly potential, and the need to preserve enough free time for doing scholarship, is that the end result reinforces the classroom. There are other defenses, but I think you may be winnowing down the roster.

If someone can teach a substantive class (and I mean *really* teach it well and with command), I don't think it matters entirely what they write about. But I'm not sure that is any more true of legal historians than of anyone else, particularly anyone else with a niche scholarly specialty and an interest in a range of other subjects. You have a particularly broad range of areas in which you would enjoy teaching. But I know non-historians with a similar range and I know legal historians with a narrower range.

I think that there are certain subjects that can be taught well or even better by a generalist - doctrinal subjects the interact broadly with a large number of areas - contracts for example. There are other subjects that need to be taught by specialists. T&E, securities law, tax, intellectual property. In the latter subjects I am inclined to also think that substantial practice experience is important. One subject best taught by an experienced maybe-generalist litigator is evidence.

I think that by far the most important component of a law teacher's abilities, particularly if s/he is mostly teaching "bar" courses, is whether s/he knows how to teach effectively. Deep subject-matter expertise is nowhere near as important.

Eric: Couldn't disagree more.
As a former law school student, don't you recall the "deer in the headlights" look of terror on a prof's face who was trying to teach a subject without deep subject-matter expertise?
Inevitably, a student will ask a question that reveals the holes in a teacher's expertise. A teacher who is unable to addresss a basic question that someone who went beyond a brief stint in Big Law would be able to hit out of the park will lose credibility.
This fact might not show up in evaluations, for a myriad of reasons.

It is *possible* that a question is beyond a very good teacher's expertise, but so what? If the question is truly "basic" as you claim, then a teacher teaching effectively should have the answer to that question. But, more importantly, a good teacher can effectively address a question that they don't have the exact answer to in a myriad of ways that retain their "credibility" without a "deer in the headlights look". One way is going through the process of how they would figure out the answer to that question, showing the process of legal reasoning. Another is saying "I don't know" and figuring out the answer after class and answering it for the class later.

And even teachers that have taught and practiced for a number of years get stumped by "basic" questions, since every new student who walks in the door has a slightly different take on the material. The key is in handling that well.

In addition, I would be careful about the question of "credibility" of professors as a measure of quality. Often the stumper questions can often come from a student looking to challenge the professor to show how the smart the student is. Most of the class recognize these students as undermining their own credibility as good citizens of the class, rather than as a knock on the professor. And finally, in my opinion, the measure of a teacher is not in the ability to be a subject matter expert in every escoteric aspect of the law that they are teaching, but the ability to distill the important parts of the subject and communicate them in a way that is understandable to the majority of the class. That is what makes a teacher credible, rather than subject matter expertise.

"the measure of a teacher is not in the ability to be a subject matter expert in every escoteric aspect of the law that they are teaching, but the ability to distill the important parts of the subject"

I think this inadvertently gets at one of the reasons law schools suffer from a lack of credibility. Choosing to spend valuable class time on something sends the message "this is what I think is important." So when class time is spent on subjects like fox hunting and the fee tail, credibility is going to suffer.

Anon at 6:45
By a "basic question" I meant a question that pertains to a matter that should be within the core expertise of a person teaching a subject. Of course, you are 100% correct: "a teacher teaching effectively should have the answer to that question." I couldn't agree more.
Unfortunately, the rest of your post goes on to defend not knowing the answer to a basic question. You seem to be saying that because a prof may be able to skillfully "finesse" a question that teacher is demonstrating good teaching effectiveness.
With respect, I again invite you to recall your experience as law student. Did you pay more attention to a prof who wrote the book, or a prof who knew the subject inside out by reason of practice at high levels, or the prof who didn't know the answer to basic questions?
I know exactly what the sort of "finesse" you speak of looks like, and I can tell you that this often comes across as a sort of evasion. It is either perceived as "hiding the ball" or worse, gunners notwithstanding.
As I said in my first post, inept teaching doesn't always show up in evals, because a good classroom performer with the "right" personal attributes can sometimes use the tools of "finesse" that you describe to win over students. (Just as a Kingsfield can and likely will these days lose the class.)
But, let's not miss the basic fact upon which we agree: not knowing the answers to basic questions is not effective teaching . Perhaps we disagree about whether finesse in this circumstance is effective teaching.
For anyone with substantial experience in practice - who has supervised junior attorneys, answered clients' questions, and better yet, spent time in the crucible of court - a certain facility with certain subjects is acquired that differs from the type of expertise acquired by, for example, persons trained in a rarified and sheltered environment who have been encouraged to believe that to "finesse" questions about the actual subject being taught is the superior skill.

Hmmm...I was going to comment on legal historians, but since this thread has been hijacked by the usual law school scam crowd, I'll ask a simple question: Is there one study that shows professors who were in practice for a number of years are better teachers than those who were not? No anecdata, please.

(Oh, and BL1Y, if you think that Pierson v Post was just about fox hunting, you really weren't paying attention in Property)

There are many ways to fail at teaching, and many ways to succeed. All else being equal, a teacher who knows a subject in great depth will be better than one who doesn't. All else being equal, a teacher who understands how different subjects fit together will be better than one who doesn't. All else being equal, teachers who have extensive personal experience, lightning-quick wits, powerful personal charisma, deep empathy, photographic memories, lifetimes of careful reading behind them, and boundless energy will be better than teachers who don't.

The problem, of course, is that all else is not equal, and teachers and schools are constantly trading these virtues off against each other. Still, given the variety of roads to good teaching, three things seem worth emphasizing. First, law schools undervalue teaching in general, and could be much better about helping their faculty improve on many of these axes. Second, good teachers understand themselves, play to their strengths, and work around their weaknesses. And third, it's good for a faculty to have a diversity of teaching styles: different students learn in different ways, and it's good for every student to see different approaches. It's good to have some true generalists around, but I wouldn't want a faculty to be primarily composed of them.

anonprof06 | August 11, 2013 at 09:26 PM
No one has hijacked the thread, and your comment is the sort that starts the sort of nasty exchanges this blog is now famous for. (In fact, by mentioning the "scam" crowd you may be intentionally trying to provoke such nasty exchanges, and as such, a true troll).
Your insulting comment (reference to "the usual law school scam crowd") actually reflects the "usual nasty arguments of the FL lounge crowd."
I can't comment on BL1Y's comment, but mine was in response to this comment, by Eric Muller:
"I think that by far the most important component of a law teacher's abilities, particularly if s/he is mostly teaching "bar" courses, is whether s/he knows how to teach effectively. Deep subject-matter expertise is nowhere near as important."
Eric's comment was based on the other comments and perfectly germane to the discussion. I disagreed with Eric, he with me, and I responded. This discussion was calm and mutually respectful.
anonprof06, you are by inference claiming that Eric is part of the "law school scam crowd" because his comment did not mention "legal historians." This is a very nasty sort of comment, and insulting Eric this way is very unseemly.
So, anonprof06, please lose the insults and weak attempts to slur by baseless association, and bless us with your brilliant comment about legal historians, won't you?
And, while you are doing that, perhaps you will cite the studies that say that legal historians are better teachers than professors who were in practice for a number of years.
Non anecdata, please.

anon @10:09: You're not going to get very far with your question, it's one I've asked several times.

Whenever professors' general lack of practical experience is criticized, the common refrain is that being a good practitioner doesn't necessarily make you a good teacher. This is absolutely true. But, it's never followed by an explanation of why the factors law schools do favor would indicate that someone is a good teacher. What about going to HYS makes you more likely to be a good teacher than someone at a tier 2 school? What about clerking for a Supreme Court justice makes you more likely to be a good teacher? What about being on law review makes you more likely to be a good teacher?

I don't entirely agree with 2:21, but when commenting on the relevance of practice experience in a subject to teaching it to future practitioner, some members of academia should be wary of attracting the response given in cross-examination by one Mandy Rice-Davies: "well he would [say that] wouldn't he."